This government must be subject to the rule of lawby Steve Peers / September 16, 2019 / Leave a comment
What’s at stake in this week’s Supreme Court appeals against the prorogation of parliament?
The background is the government’s decision in August to prorogue parliament for several weeks over September and October. Ostensibly this break, which partly covers time when parliament is normally in recess for party conference season, is to prepare the ground for a Queen’s Speech to start a new session of parliament. But it’s a longer gap than usual for this purpose; and many suspect that the real purpose is to prevent parliamentary scrutiny or objection to the government’s Brexit policy.
The Supreme Court isn’t asked to decide whether the prorogation is a good idea; its task is to consider whether prorogation is legal. There are some Acts of parliament which regulate prorogation: for instance, if the government thinks there’s an emergency, and uses special emergency powers under the Civil Contingencies Act, that law then cuts short any prorogation of parliament in place at the time, so that MPs can come back and control the government’s use of those powers. However, in general the decision to prorogue is a “prerogative” power. That means, in effect, it’s a power of the executive; while officially the Queen prorogues parliament, she acts on advice from ministers.
Executive powers are usually less controversial when a government has a majority in parliament. They are more problematic in the current political situation, when the government not only has a minority in parliament, but also is pursuing a policy (potential a no-deal Brexit) which is opposed by a parliamentary majority, and there is limited time for MPs to intervene. Since the subject of Brexit is as controversial as it is endless, and the parliamentary majority and the executive have opposing views on whether Brexit should happen on 31st October even without a deal with the EU, the background for this litigation is highly political.
The approach of the English High Court last week in its Miller 2 judgment was to leave it to politics. For the English judges, although (as case law has established) the use of the prerogative is sometimes reviewable in courts, sometimes it is not. (In legal jargon, the latter cases are “non-justiciable”). In this case, there were no standards which could easily be defined in order to judge whether a decision to prorogue parliament could be reviewed by the courts. In…